A discovery order in October against KPMG LLP hit the defense bar like a tire iron — the accountancy firm said the expense might run to $100 million dollars. To critics, the order was emblematic of out-of-control electronic discovery costs that litigants are using to bludgeon the opposition into settling. The scant statistics available don’t necessarily bear it out, but practitioners and academics who specialize in electronic discovery can cite enough horror stories to support the conviction that there’s a growing problem.
Under the Federal Rules of Civil Procedure, and in most states, the legal system is supposed to be “just, speedy and inexpensive.” But electronic-discovery requests compound roadblocks that already existed in the courts to meeting those standards, said Rebecca Kourlis, executive director of the Institute for the Advancement of the American Legal System.
BY THE NUMBERS
The cost of a case
Plaintiffs’ and defense attorneys were asked to estimate total litigation costs for closed cases, including any discovery and fees.
Is discovery forcing settlements?
The Federal Judicial center asked plaintiffs’ and defense lawyers whether discovery costs contributed to the likelihood of settlement in 1,304 cases.